Thursday, March 7, 2013

What’s the Right Prescription for Legal Education? | On Lawyering

What’s the Right Prescription for Legal Education? | On Lawyering:
by Richard T. Cassidy

Recently, I happened upon an opinion piece there by James L. Huffman, Dean Emeritus of the Lewis and Clark Law School and a member of the Hoover Institution’s Task Force on Property Rights, Freedom and Prosperity. Huffman’s piece, entitled “Perverse Incentive of the Lawyers Guild,” (Wall Street Journal, February 21, 2013), analyzes the current problems facing American legal education. As he notes, costs are up and applications are down. Law schools are scrambling to stay afloat. And as mentioned in my most recent post “Distant Rumblings from the ABA Meeting, ” the ABA has created a task force on the future of legal education, charged with studying the problem and recommending solutions.
Huffman rightly suggests that the ABA should look within. He suggests that the fundamental problem is rooted in an endemic tendency of regulation. He argues that the regulators have captured the regulator, here the American Bar Association Section on Legal Education and Admissions to the Bar.
He has a point. The Section on Legal Education is dominated by law school deans and tenured law school faculty. The section sets the accreditation standards for law schools. It’s no surprise that those standards require that 80% of law school teaching be performed by full-time faculty, currently tenured or eligible for tenure.
At almost every law school, tenured faculty have one common characteristic: they were the most academically gifted law students of their generations. In short, they were “good at law school.”
That doesn’t necessarily make law professors good at practicing law. Almost every law professor I know has all the ability it would take to be a great practicing lawyer, but little or no interest in being one. Few have much practical experience.
Most law school faculty members are interested in research and writing about jurisprudence: the philosophy or science of law. It’s an important subject matter and learning about it is critical to being a good lawyer. But as I’ve argued often in the past, it’s just not enough.
To this point in the argument, Huffman and I — liberal and conservative — agree completely. Our analysis of the problem is the same. But his prescription for change and mine differ, at least in emphasis.
Trusting to the market, Huffman suggests that the ABA should “free law schools from most of the existing standards and encourage them to draw on the enormous intellectual power of their faculties to design and test innovative approaches – – and let a thousand flowers bloom.” In his view, “the ABA’s role should be limited to assuring that prospective students and legal employers get full and honest information about what could become a bonanza of legal education alternatives.”
In my view, we know a lot about the knowledge and skills law students ought to be taught to serve the public well as practicing lawyers. Many members of the public are not well-equipped to evaluate whether the lawyer they are hiring has what’s needed to competently handle their problem.
I think the rules of accreditation should be changed to require that law schools be what the name suggests they are: professional schools graduating students with the basic knowledge and skills required to competently handle legal problems requiring professional attention.

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